REFERENCE TO CONSTITUENT ASSEMBLY DEBATES BY INDIAN

SUPREME COURT: A case Analysis of Constitutional Bench Decisions

from the year 1993 to 2018

Introduction: Road to Constituent Assembly1:

Formal process which resulted in formation of Constituent Assembly began in the year 1895,
this was due to framing Swaraj Bill. This bill crafted out, Constitutional vision for Future India.
Though the Bill was not comprehensive and contained in it only 110 Articles, many important
rights were reflected in the Bill which are also reflected in the Current chapter on ‘Fundamental
Rights’ in Current Constitution like Equality before law, right to property- free speech etc. It
even provided the Structure of Government for Independent India. Though it was only a non-
official attempt to draft a working constitution it had a significant effect on its successors like
Nehru Report 1928 and The Govt… of India Acts. This Bill becomes particularly important as
it laid platform for future discourse. The Second relevant step towards the inclusion of Indians
in Government was made through “Morley-Minto Reforms of 1909”, which is also called as
Indian Council Act 1909. This Reform was due to the fact that ‘Indians were becoming more
qualified through education and they started demanding equal rights and participation in
Administration of Government. The point of Moderates was heard by the British and reforms
were placed. Contrary to the expectations these reforms divided Indians, in their pursuit of
ultimate freedom, as Separate Electorates were Introduced for Muslims and only limited
franchise was granted in voting for elections of Central and Provincial Legislative Councils.
This Act disappointed Indian Nationals and also sowed seed for the Future Partition and
division of India into India and Pakistan.

Next progressive Step was “Congress League Scheme” which was prepared after the Joint
session of Congress and All India Muslim League in 1916 where they agreed to cooperate in
its pursuit for Self-Government. Though this scheme was not given mush weightage by British,
it had various provisions which reflected the compromise made behind such Scheme, as it had
provisions on separate electorate and proportional representation for minorities at various
levels of Government. But the severe shortcoming of this scheme was that it had no discussion
or provision on Rights. Incidentally this scheme was subsumed by Montague-Chelmsford
reforms, which led to the framing of Govt. of India Act-1919. This Act was codified version

1
From the Readings of B. Shiva Rao and CAD INDIA database,
of Montague-Chelmsford reforms which were criticized by the Indian Nationals and especially
by Annie Besant who stated the Act as “unworthy for England to offer and India to accept”.
The Preamble of the Act was garbed in soothing statements like “An Act to provide Increasing
Indian Association in every branch of Government Administration”, but in reality, this Act was
sham promise of ‘Self Government’. The important features which emerged through this Act
were Diarchy, Federal Structure elements like Governor and the most striking feature was
review of the Act after 10 Years in Working etc. Though this Act did not gather much support
from Indians it surely reflected the importance of India in British Empire.

After successive failure of British, all parties thought it would be fair to draft our own
Constitution. Thereupon, Commonwealth of India Bill, 1925(which was formed after All Party
Meeting in 1925, chaired by Anne Besant) drafted under the Chairmanship of Tej. Bahadur
Sapru was a milestone which is forgotten in History. The Bill was of such comprehensive
nature that much of its provisions were included in Govt… of India Act, 1935 Nehru Report,
1928. The then Commonwealth Bill was also presented in the British Parliament by Labour
Legislator George Lansbury but due to domestic defeat of Labour party in England this
benevolent Legislation never saw the light of the Day.

After the Failure of Commonwealth Bill, Nehru Report was compiled which in General Terms
was collection of all previous Bills and it introduced idea of “Full Responsible Govt…”, this
report aspired equal Constitutional status for India among comity of Nations and dealt at length
with the provisions relating to Rights- Structure of Govt… etc. Nehru report was incorporated
by British while framing Govt… of Indian Act, 1935. Domino effect, which paced up the
demand for independence was initiated from Lord Irwin’s declaration which was a vague
statement, made merely to appease Indian’s. But fortunately, it led to radical political
development in both India and Britain. This Declaration by Irwin to “Facilitate India’s
transformation to Dominion Status” had far reaching consequences and eventually lead to
passing of “Purn Swaraj” Declaration in Lahore Session of 1929. The chain reaction started by
Lord Irwin declaration fasten the Formal process of negotiations for Dominion Status. And the
demand for Dominion Status became more vocal thereafter and the principle involved was
“Justice” to attain the Full Dominion Status. Soon after the Purn Swaraj Declaration there came
Karachi Resolution in 1931 which made it apparent that the Indian’s won’t compromise on
anything less than Independence. Karachi resolution espoused the idea of Fundamental Rights
and was consider the basis on which Part III was framed in the 1950 Constitution.

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In 1933, British Government issued a “white paper” which outlined their proposal for bringing
about constitutional change in India. This proposal was examined by ‘joint parliamentary
committee’ and was embodied in Govt… of India Act 1935. But in the Conference held in
Ranchi which was headed by M.A. Ansari and Swaraj Party2in May 1934, the proposal of
British Government was rejected. And it put forth the formal demand for convening the
Constituent Assembly for framing acceptable Constitution for India.3 Though the formal
demand for Constituent assembly was made in 1934 Ranchi Session; The Constituent
Assembly came into being after the Cabinet mission plan 1946, and thereupon the constituent
assembly was recognized by section 8 of IndependeneAct,1947. And on 9th December 1946
Constituent assembly met for the first time in Constitution Hall which is now referred to as
Central Hall of Parliament. On August 29, 1947 Constituent Assembly through resolution
appointed a drafting committee which was tasked to review the scrutinise the draft Constitution
and deal with all the matters ancillary to it.4 Drafting Committee had 7 Members and on the
first meeting of drafting committee on 30 August, 1947 it elected BR Ambedkar as its
Chairman. And thereupon Drafting Committee started scrutinizing draft constitution as
prepared by BN Rau. And the most influential committee in the entire process of framing
constitution was Drafting Committee. Out of total 165 Sitting of Constituent Assembly
majority of sitting were spent on discussing Draft Constitution only with the numbers of sitting
as high as 114.

In the span of 2 years and 11 months, Constituent Assembly completed its task of framing the
Indian Constitution. During this period the Constituent Assembly had 11 sessions and sat for a
total of 165 days. On 26th November the Constituent Assembly adopted the Constitution of
India which came into force on 26th January 1950.

Analysis of Case Laws which referred Constituent Assembly Debates from

the year 1993 to 2018:

RAGHUNATHRAO GANPATRAO v. Union of India5:- Government of India by

26th Constitutional Amendment, 1971; Abolished “Privy Purses” by deleting Article 291 and
362 and substituting Article 363A and 366(22). The said amendment was challenged in this
case. In this case petitioners tried to establish that “Articles 291 and 362 are part of Basic

2
It was a Parliamentary Wing of Congress, which was founded by C.R. Das and Motilal Nehru in 1922,
3 B. Shiva Rao, The Framing of India’s Constitution- Select Documents, 2nd Edition, Volume-1, Chapter 17,
4 CAD Website,
5
AIR (1993) SC 1267,

2
Features of the Constitution and it is outside the scope of Parliament to amend Basic Feature
of the Constitution”. As the semantics of Article 291 and 362 did not offer much assistance to
arrive at a conclusion whether they form part of Basic Structure? Or Whether they form
‘integral part of Constitutional Scheme? Further to emphasise upon their claim Rulers put forth
the argument that “there can not be a Basic Structure Divorced from evolution of Historical
Precepts and Principles on which Constitution is founded”. Petitioner cited the debates of
constitutional assembly to establish the significance of these Articles and to establish that
Article 291 and 362 are the Basic Feature of the Indian Constitution. It is not disputed that the
Rulers of Sovereign Princely States integrated into Dominion of India on consideration of Privy
Purses and to have effective control over their private properties, but to derive a conclusion
that the rulers sacrificed their freedom for the welfare of community as whole is unfounded.
The most important reason for the accession was peoples demand for Democracy and it was
peoples force which mandated the rulers to either integrate into India or Pakistan. To
understand the circumstances under which these provisions were incorporated in the
Constitution, Supreme Court referred to Speech of Sardar Patel which was made on 13th
November 1947, while addressing constituent assembly Sardar Vallabhbhai Patel made it
clear that “it was due to concentred effort of people that the paramountcy has been eliminated
and it is them who will decide their destiny and not the Individual rulers”6. In the present
scenario constituent assembly debates were taken into consideration by Supreme Court to
ascertain the Scope of Article 291 and 362 which provides a clear picture that Constitutional
Framers did not consider Article 291 and 362 as Essential Feature of the Constitution. And the
privy purse which was awarded to them was merely a “Government pension” in lieu of Rulers
surrendering their sovereign rights7. At this point it is clear to state that in this particular case,
a reference was made to Constituent Assembly Debates only to churn out the circumstances
which resulted in framing of these Provisions. The reference to Debates was only to ascertain
the intention of framer’s behind these provisions and establish in clear and unequivocal words
that “The integration of Princely States was due to concentred effort of people and not as a
result of Rulers Sacrifice for Unified Bharat”.8

In the present Case reference to Constituent Assembly Debates were merely to ascertain the
“Contextual Understanding and legislative intent” behind the enactment of the Provisions

6 Sardar Vallabhbhai Patel Speech in Constituent Assembly, 13th November 1947, clarifying his earlier position regarding
the sacrifice made by Rulers of Independent State,
7 Nawab Usman Ali Khan v. Sagarmal, (1965) 3 SCR 201 ,
8 B. Shiva Rao, Framing of India’s Constitution, Universal Law Publishing Co…, Second Edition, Vol-5, 2006,

3
Related to ‘Privy Purses’, though the reference to Debates did play an imperative role in
understanding the Scope of Articles and circumstances which lead to their incorporation, but
they did not affect the Outcome of Case, as there was plethora of Jurisprudence relating to
Privy Purses and the decision of the Court was not as a result of reference to Constituent
Assembly Debates. Therefore, reference to Constituent Assembly debates has no effect on the
outcome of the decision.

COMMISSIONER OF WEALTH TAX v. DR. KARAN SINGH9: This case was

contended to ascertain power of Parliament to regulate matter of Wealth Tax and extension of
Wealth Tax Act, 1957 to state of Jammu and Kashmir. This case specifically dealt with
methods of interpretation of Constitution and Judgments of Apex Court. It stated that, when
the language of statute is clear and unambiguous, methods of Artificial Interpretation must not
be applied. To ascertain the residuary Power of Parliament to legislate in matters provided
under three Lists of Schedule 7 in Constitution of India, a reference was made to Dr.
Ambedkar’s Speech in Constituent Assembly while speaking on the Parliaments Legislative
Power that "Anything not included in List II or III shall be deemed to fall in List I". But as the
same was clear from the plain reading of Article 246 and 248, no further reference to any other
interpretation mode was referred to. Court followed the Liberal method of Interpreting the
Article and though reference was made to the Dr. Ambedkar’s speech regarding same, it had
no effect on the outcome of the Judgment as the Language of the provision was clear and
unambiguous.

R.C. POUDYAL v. Union of India10: The major issue which lead to this case have
historical significance in our fight for Independence. The events which lead to this case were:

In 1975 Sikkim became full fledged part of India and voted for liberal democracy through
referendum held in the State of Sikkim. This event is significance as it reflects the intention of
People of Sikkim to have a Democratic Model with Secular values as the most appropriate
form of Government. Consequential amendment was made to Constitution and Article 371F11
was inserted in Indian Constitution which provided Special Structure of Governance for State
of Sikkim and through 1976 Amendment in Representation of People Act, 1951, same was
extended to State of Sikkim.

9 1993 SCR (1) 560,

10 1993 SCR (1) 891,
11
Instituted by the Constitution, 76th Amendment Act, 1975, Section-3, (w.e.f. 26-04-1975),

4
To have diverse representation in the Government, reservation of 12 Seats in Sikkim
Legislative assembly were formulated for people of "Bhutia-Lepcha" origin and one seat for
"sangha" i.e. Buddhist Lamaic Religious Monasteries which were purely crafted out on
Religious lines. These Arrangements were challenged by the Petitioner as Violative of Article
14, 15 and 325 of the Constitution. And also, a challenge was made to special concession,
which Indian Parliament can grant under Article 2 of the Constitution while Admitting New
State into the Dominion of India.

Supreme Court being the highest adjudicating authority of India was tasked not only to interpret
the provision of Constitution but also to flesh out Organic Scheme of Constitution while
deciding upon the Constitutionality of given arrangement. Constitutional Interpretation is
incorporated by the Court only in cases where the language is not clear and is ambiguous and
in case where such interpretation is required to be construed a liberal construction is crafted
out and such interpretation is adopted which is coherent to the Spirit of the Constitution.

In Present Case Supreme Court referred to the Enacting History of the Constitution and cited
the Constitutional Assembly debates to highlight the vices of “Separate Electorate” and
Reservation made on Religious Lines for election. Firstly, Court stated that it is clear from the
Scheme of the Constitution that basic philosophy of Constitution rejects the idea of Separate
Electorate on Religious Lines and this conclusion is reinforced by the Historical Background
which resulted in the Enactment of the Constitution. To thrust on the above argument Court
cited the instance of formation of Committee on Minorities on 27th February, 1947 to consider
the issue whether India requires joint or separate electorate. This committee after elaborate
examination of past Instances and the vice of having separate electorate in recent history after
it was introduced through Morley-Minto Reforms and which lead to division of India on
Religious lines emphatically rejected the idea of Separate electorate and stated that “ The first
question we tackled was that of separate electorates; we considered this as being of crucial
importance both to the minorities themselves and to the political life of the country as a whole.
By an overwhelming majority, we came to the conclusion that the system of separate electorates
must be abolished in the new Constitution. In our judgment, this system has in the past
sharpened communal differences to a dangerous extent and has proved one of the main
stumbling blocks to the development of a healthy national life. It seems especially necessary to
avoid these dangers in the new political conditions that have developed in the country and from
this point of view the arguments against separate electorates seem to us absolutely decisive.
We recommend accordingly that all elections to the Central and Provincial Legislatures should

5
be held on the basis of joint electorates."12 Further Supreme Court Cited the debates in
Constitutional Assembly which acutely rejected the idea of Separate Electorate, of all others
speeches most relevant was the Speech of Sardar Vallabh Bhai Patel who categorically stated
that “I had not the occasion to hear the speeches which were made in the initial stages when
this question of communal electorates was introduced in the Congress; but there are many
eminent Muslims who have recorded their views that the greatest evil in this country which has
been brought to pass is the communal electorate. The introduction of the system of communal
electorates is a poison which has entered into the body politic of our country. Many Englishmen
who were responsible for this also admitted that. But today, after agreeing to the separation of
the country as a result of this communal electorate, I never thought that that proposition was
going to be moved seriously, and even if it was moved seriously, that it would be taken
seriously.”13 It is imperative to note that there was no provision in Original Draft Constitution
regarding Joint Electorate but this issue was so fundamental that it was felt by the Constituent
Assembly to include specific provision in Constitution which provides for Elections to Central
and State Assembly by Joint Electorate and Article 289A came into being which was numbered
as Article 325 in the Contemporary Constitution14. Court through reference to Constituent
Assembly Debates and Bare reading of Article 325 highlighted the vices of Separate electorate
and stated that “Reservation in Sikkim Legislative Assembly for Buddhist Monastery “Sangha”
is ultra-vires of Basic Fabric of Constitution and it is beyond the scope of Parliaments power
to bring about change in basic structure of the Constitution while giving concession to new
states entering into Dominion of India”. In the Present case reference to Constituent assembly
Debates had positive outcome on the Judgment of the Court and was outcome determinative.
The court looked into the Legislative intent of the Framers while arriving at the decision.

Supreme Court Advocates-on-Record Association v Union of India15: This case

is very unique with respect to my Research work. In this case the Apex Judiciary evaluated two
views which were expressed by the Constituent Assembly while drafting the provisions Related
to Union Judiciary. It is interesting to note that Supreme Court interpreted the Constitution in
a manner which “strengthen the Independence of Judiciary” which in-turn strengthens the
Basic Structure of the Constitution. In first instance, Supreme Court stressed on an organic
interpretation of Constitution and disregarded the literal interpretation of the word

12
B.Shiva Rao, Framing of India’s Constitution, Second Edition, Volume-II, Pg…412,
13 Constituent Assembly Debates on Separate Electorate, Volume-5, Page 225,
14 B. Shiva Rao: Framing of India’s Constitution, Select Documents, Vol. IV p. 141,
15
AIR (1994) SC 268,

6
“Consultation”, mentioned in Article 124(2), which overshadowed its previous decision in SP
Gupta v Union of India16, where it held that, “Constitution does not purport primacy of Chief
Justice of India while appointing and transferring Judges of Superior Judiciary”. While
interpreting the meaning of word “Consultation” mentioned under Article 124 (2), Court stated
that a literal interpretation will not be beneficial and will not serve the purpose of Constitution
rather “Consultation” should be interpreted keeping in mind the Working of Constitution in
last four decades and conventions which developed during this time period. The originalism
must be applied to form an understanding which is workable in contemporary context and not
just by referring to debates of Constituent Assembly in isolation where Dr. Ambedkar stated
“It seems to me, in the circumstances in which we live today, where the sense of responsibility
has not grown in the same extent which we find in the United States, it would be dangerous to
leave the appointments to be made by the President, without any kind of reservation or
limitation, that is to say, merely on the advice of the executive of the day. Similarly, it seems to
me that to make every appointment which executive wishes to made subject to the concurrence
of Legislature, is not a very suitable provision”. Further while concluding the debate on
Superior Judiciary he stated “With regard to the question of concurrence of the Chief Justice,
it seems to me that those who Advocate that proposition seem to reply implicit both on the
impartiality of the Chief Justice and the soundness of his judgment. I personally feel no doubt
that the Chief Justice is a very eminent person. But after all, the Chief Justice is a man with all
the failings, all the sentiments and all the prejudices which we as common people have and I
think to allow the Chief Justice practically a veto upon the appointment of Judges is really to
transfer the authority to the Chief Justice which we are not prepared to vest in the President
or the Government of the day. I, therefore, think that is also a dangerous proposition”17.

To give impetus to importance of “Constitutional Conventions” Supreme Court refereed to

Constituent Assembly Debates to establish that Constitutional Conventions over time become
part of the Constitution and as everything can not be written into text of Constitution,
Conventions acquire Constitution backing over time. In this regard Speech of Rajendra Prasad,
President of Constituent Assembly was referred to where he stated that “We have prepared a
democratic Constitution but successful working of democratic institutions requires in those
who have to work them willingness to respect the view-points of others, capacity for
compromise and accommodation. Many things which cannot be written in the Constitution are

16 1982 2 SCR 365,

17
Dr. Ambedkar Speech in Constituent Assembly on May 24, 1949,

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done by convention. Let me hope that we shall show those capacities and develop those
conventions18”. Though the Constituent Assembly Consciously chose to drop the word
“Concurrence” and include “Consultation” instead under Article 124(2) which is clear from
the reference made to Debates, Supreme Court Highlighted that “the words are better
understood in contemporary context and w.r.t. vice it intends to do away and, in this context,
it is better to give primacy to Chief Justice Opinion only in case where the Consultation results
in split decision or no decision. And Chief Justice being representative of Court and Expert in
knowing his Colleagues, is in better position to decide on the Transfer and Appointment of
Judges.
The approach of Supreme Court is clear from the method adopted by it while interpreting the
Constitution which was aiming at “Strengthening the Independence of Judiciary”. It clearly
took an organic interpretation by Juxtaposing Constitutional Provisions and debates of
Constituent Assembly which lead to the enactment of provision. Though Constituent assembly
consciously adopted word “Consultation” in place of “Concurrence”, a holistic view makes it
amply clear that framers intended to avoid concentration of power in either Judiciary or
Executive and clearly, they intended the Judiciary to be separated from executive. And they
believed that the two Highest Constitutional Functionaries would have a healthy discourse but
the subsequent events after the passage of Constitution and the Emergency period required
primacy of either in case of Deadlock. And keeping in mind the scheme of Constitution with
the help of references to Legislative History Supreme Court held “Chief Justice being the first
among equals has primacy in matters of appointment and transfers of judges serving in Superior
Judiciary”. In this case debates of Constituent Assembly played vital role in the outcome of the
case and were outcome determinative.

S.R. Bommai V. Union of India:19 This case is very imperative as it explored many
important facets of the Constitution i.e. Federalism, Secularism, Democracy etc...
While exploring Federal Character of the Constitution and understanding the exceptional
circumstances under which Central Government may interfere under Article 356 of the
Constitution i.e. emergency provisions under circumstances where the State Government is
unable to Function as per the provisions of the Constitution, court referred to the Constituent
Assembly Debates. While debating on the Articles 277 and 277A20, Dr Ambedkar made it quite

18 B. Shiva Rao, Framing of India’s Constitution, Volume-4, Pg-957,

19 1994 SCR (2) 644,
20 Now Article 356 of Constitution of India,

8
clear that the power of Central Government is to be utilized in rare cases and he clearly referred
to these provisions as “dead letter”21, because they were to be used in exceptional
circumstances and not under ordinary conditions. Despite these overriding features, Dr.
Ambedkar clearly stated that the Indian Constitution is Federal in character and overriding
features are to be used in extraordinary circumstances and not as a rule. He argued that our
Constitution is both Federal and Unitary as per the requirement of the time and circumstances.
Further he also clarified that the similar provision exist in the American Constitution and
incorporation of such provisions is not a departure from existing Constitutional Features.
Thereby making it clear that the invasion of States power is not a normal feature of our
Constitution but only an exception. States are Sovereign Units in the Union and not merely an
Administrative Units which have their independent Constitutional existence; therefore,
President cannot use these provisions unmindfully but has to use these powers under
exceptional circumstances. And as this power effectively touches upon the Basic Structure of
the Constitution, Supreme Court has power to evaluate discretion of President through Judicial
Review. It is to be stated clearly that this power is not to be used to overthrow the opposition
Governments in the States. But the working of Article 356 (1) puts up a different story, so far
this power has been used on 90 occasions and almost in all cases to overthrow Government of
Opposition Party in States. Hence to prevent the Basic Structure of the Constitution and
Integrity of India, judiciary is the only institution which can act as saviour of the system. And
hence the subjective discretion of President is liable to be reviewed by the Supreme Court.
Therefore, to ascertain the purpose of the Article 356 Supreme Court referred to
the debates of Constituent Assembly and found that the provision was crafted to enable the
State to function as per the provision of the Constitution. The invasion upon States power was
not suppose to be arbitrary, wanton and unauthorised by law. It was to protect the State Units
from external aggression, internal commotion and to ensure States carry on their functions as
per the provision of the Constitution and not to dismiss opposition Government. Clearly, we
can see that the reference to Constituent Assembly Debates was to understand the intention of
the Framers while crafting the Emergency provisions. Here the reference was to develop the
understanding of provision and to understand the vitality of Conventions established to utilize
these exceptional powers. In the present case many references were made to Constituent
Assembly Debates but only to develop understanding of those concepts like Governor,
Democracy, Secularism etc… These references were only partly outcome determinative i.e.

21 Constituent Assembly Debates, Vol- IX, Pg… 177,

9
they effected only certain conclusion of the Court and not all. The reference to Constituent
Assembly debates certainly assisted court to evaluate conventions establish to use these powers
and to that extend they did affect the decision of the court.

ACTION COMMITTEE v Union of India:22 In this case Supreme Court was tasked
to rule on the matter whether a person declared Schedule Caste U/A 341 or Schedule Tribe
U/A 342 in particular State, when migrate to another State, is he still entitled to receive benefits
and privileges which were conferred on him in the Native State in the Migrated State? Though
the reference was made to Constituent Assembly Debates where Dr. Ambedkar answering the
question raised by Mr. Jaipal Singh stated that “Suppose a member of Schedule Tribe migrate
outside the Scheduled Area where he was bestowed with the benefits, will he still be able to
claim those benefits in the migrated area? Before answering the question Dr. Ambedkar stated
that to have a general rule for implementation of such provision is impossible unless we are
aware of the quarters where these provisions are called for implementation. And answering
the question in negative, Ambedkar stated that under the present scheme of Constitution such
person would not be entitled to the benefitted. As it would be practically very difficult to
implement the provision of Tribal Area or Scheduled Area in the Migrated Area”, which clearly
indicates the intention of framers that the privileges conferred were with respect to specific
State or Union Territory only. But as the language of Article 341 and 342 is clear and
unambiguous, court followed the Rule of Constitutional Interpretation and held that “Article
341 and 342 are unambiguous and do not require any interpretation and hence the petitioner
can not be granted benefits in the migrated state as the Article in clear terms specify that the
benefits conferred are with respect to particular state only and are not intended to extend to
other states”. Here as the language was clear, citation of Constituent Assembly debates had no
effect on the outcome of the case.

T.N. SESHAN CHIEF ELECTION COMMISSIONER OF INDIA v Union

of India23: In this case reference to Constituent Assembly Debates was made to understand
the significance of the post of Chief Election Commissioner. Citation was made to debate
between Dr. Ambedkar and K.M Munshi, which was deliberation upon the issue of
permanency of Election Commission as an Independent Body to conduct election and of Chief
Election Commissioner. But the main issue in the case was, ‘Legality of the Ordinance

22
1994 Supp (1) SCR 714,
23 1995 Supp (2) SCR 106,

10
promulgated by the President’ and as Matter in Issue has no assistance of Constituent Assembly
Debates, they were of no help to the Court while deciding the Case. Hence, in this case citation
of Constituent Assembly Debates had no effect on the outcome of the case.

BALAJI RAGHAVAN v Union of India24: Important question which was to be

adjudicated in this case was, whether ‘Bharat Ratna, Padma Vibhushan, Padma Bhushan’ etc…
which are conferred by State are “titles” within the ambit of Article 18 and can they be used as
prefix before the recipient of person so awarded?

To draw a distinction between ‘titles’ and ‘meritorious

recognition’, Supreme Court referred to Constituent Assembly Debates extensively to develop
a comprehensive understanding of such bestowal. It is to be noted that the Committee for
instituting National Awards and Honours was constituted even before the Constitution was
Formally Drafted and on 13th February 1948, B.N. Rau was appointed Chairman of Committee
to recommend the number and nature of Civil and Military Awards. And the National Awards
were finally instituted in January 1954 by Presidential Notifications. To arrive at a decision, it
was imperative to look at the framing History of Article 18 to decipher whether they are titles
and can they be used as prefixes. On March 25 1947, the present Article was discussed for the
First time in following terms by Mr. K.T. Shah “ State shall not bestow any artificial or man-
made distinction between citizen and citizens, by means of any title, honour or privilege
whether heritable or not, which could be enforceable under the provision of this Constitution
: but this shall not prevent the state to bestow academic degrees, official titles, or popular
honorifics, to the extent that they do not create any privilege class or any heritable benefits”.
But this view even prohibited the State from Recognition of Meritorious Service by Citizens
as the view of Mr. K.T Shah was any conferment by State creates Inequality.

To suggest a halfway solution Mr. K.M. Pannikar on 21st April, 1947 stated in the Constituent
Assembly that “What is prohibited is not Order or Decorations but heritable titles bestowed by
the Union which creates inequality. Such Decorations are not uncommon but are given in other
countries like Soviet Union for meritorious services. What I propose is, we must clearly
demarcate between titles which are heritable and thus create inequality and honours given by
the State for merit or in order to recognize same. Hence there exist two methods of bestowing
honours and we must aim at setting up of provisions for bestowing honours and decorations
as they are not prohibited under the Constitutional Scheme we aspire for.” This made it quite

24 1995 Supp (6) SCR 694,

11
clear that what was to forbidden was Heritable Titles and Not Awards and Honour’s but this
clause was never adopted as it never passed the test of Voting.

On April 30, 1947, further discussion was held on the same matter and Mr. Masani Suggested
that “It is clear that in Modern India State will defer from conferring any title whether it is
heritable or not. But this does not mean State cannot award or honour some of its citizens who
distinguish themselves in various fields of science and art. But one thing is clear, in free India
no man would be allowed to add any prefix before their name as a result of such honour or
award”. While supporting Mr. Masani Amendment, Mr Prakasa Stated “Sir, I would like to
clearly point out that what this provision prohibit is titles which could be attached to one’s
name and not the ‘Honours’. There lies a clear distinction between title and honours, while the
former is British Innovations which hangs with ones name, later is the one bestowed by State
to honour its citizens for exemplary work and it does not hangs with one’s name. That is all
that this clause seeks to do...we want to abolish this corroding, corrupting practice which
makes individuals go about currying favour with authority to get particular distinctions”.

Draft Article 12 (1) was accordingly drafted which stated that ‘No title shall be conferred by
State”. While Considering the Article so drafted Constitutional Advisor B.N. Rau Stated in the
Assembly that “This Article does not intend to abolish titles such as "Field Marshal",
"Admiral", "Air Marshal", "Chief Justice" or "Doctor" which indicates an office of profession
with high regards. It may be pointed out that the term "State" as defined includes "all local or
other authorities within the territory of India". Nor, presumably, is it intended to prohibit the
award of medals or decorations for gallantry, humanitarian work, etc. not carrying any title”.
And thereby Article 12 of Draft Constitution was redrafted which read as “Hereditary titles or
other privileges of birth shall not be conferred by the State”. And with further process of
discussion the Article came in its final form that “No title shall be conferred by the State, not
being a military or academic distinction”.25

Supreme Court took into account numerous references to Constituent Assembly debates in
arriving at the Conclusion that, Framers intended to abolish the British Practice of Conferring
titles which created a Privileged Class of Citizen and in-turn created inequality, which was
neither required in Democratic Indian nor it suited the Constitutional Scheme which regarded
all Indians on equal footing. Hence, the contention that whether these awards fall within the
prohibition of Article 18 was negated by the Supreme Court in the Light of Constituent

25 B. Shiva Rao, Framing of India’s Constitution and Constituent Assembly Debates Volume 3 and 7,

12
Assembly Debates and also that whether they can be used as prefixes before name was negated
by the Court. And it was highlighted that the prohibition under Article 18 is regarding Titles
and not w.r.t. awarding the citizens for their meritorious contribution in distinguished fields.
Further, it was also pointed that the National Awards are not violative of Equality which forms
part of Basic Structure of the Constitution.

Supreme Court in this case referred to Constituent Assembly Debates to ascertain the Scope of
Article 18 and the context in which the term “Title” is used within the scheme of this Article.
As the language of Article did not offer much help in ascertaining it, Court took the Aid of
Enacting History of the Provision to ascertain the ambiguity. In this case the reference to
Constituent Assembly Debates affected the Outcome of the case, not only in understanding the
Context and Ambit of Article 18 but also to rest the controversy involved in the case. Hence in
this case reference to debates affected the outcome of the case.

NEW DELHI MUNICIPAL CORPORATION v State of Punjab26: Under this

case reference was made to Constituent Assembly Debates only to understand the Controversy
at hand and did not play any role in the outcome of the Case. Court referred to the Debates of
Constituent Assembly and cited the relevant portion of Speech by Alladi Krishnaswamy Ayyar
only to understand why the American Doctrine of Intergovernmental Tax immunity was not
incorporated by the Constitutional Framers and the decision as to what commercial activities
may be taxed was left to the wisdom of parliament. Under the present controversy, there were
plethora of cases and other materials to put at rest the controversy at hand and hence the citation
of Constituent Assembly Debates was only for contextual understanding of terms and had no
effect on the outcome of the case.

L. Chandra Kumar v Union of India27: In this case reference to Constituent Assembly

Debates was merely to highlight importance of Article 32. The relevant portion which was
mentioned by Supreme Court was the statement of Dr. B.R. Ambedkar with regards to Article
25 of Draft Constitution which resembles to Article 32 of present Constitution which stated
that “If I was asked topoint out the most imperative Article of the Constitution, it is Article 25,
which is very soul of the Constitution and the very heart of it and I am glad that the House has

26 1996 Supp (10) SCR 472,

27 1997 SCR (2) 1186,

13
realised its importance.”28 The reference to Constituent Assembly debates here did not play
any significant role in the outcome of the Decision as there was plethora of Jurisprudence and
Case Precedents which stated Judicial Review of High Courts and Supreme Court form the part
of Basic Structure of Indian Constitution. The court followed the rules of Constitutional
Interpretation and as the Jurisprudence and Case Precedents existed at such time, the aid of
enacting history was merely to highlight the importance of Article 32. And reference to debates
had no affect on the outcome of the case.

IN THE SUPREME COURT OF INDIA (IN RE: APPOINTMENT &

TRANSFER OF JUDGES)29: The reference to Constituent Assembly debates in this
case was very limited and merely to establish the point that the evolution of Conventions was
fathomed by the Constitutional Framers in the areas where there exists an ambiguity. In this
regard reference was made to the speech by the President of Constituent Assembly who stated
that “there exist deliberate gaps w.r.t certain provisions and the arduous task to evolve a
channel to use discretionary power with regards to appointment and transfer must be evolved
by Constitutional Dignitaries”. The reference here did not affect the outcome of the case and
the reference has no outcome determinative effect.

Ajit Singh v State of Punjab30: In this case a short reference was made to debates of
Constituent Assembly. Court referred to the speech of Dr. Ambedkar who stated that “we
cannot accommodate the demands of these communities to the fullest as it will destroy the
imperative preposition of ‘equality of opportunity’”. Further affirmative action is adopted
under Constitutional Scheme to eradicate discrimination and not to create reverse
discrimination. Hence, reference to the debates of Constituent Assembly had no effect on the
outcome of the case.

State of Bihar v. Bal Mukund Sah31: This case clarified certain positions related to
lower judiciary and the provisions relating to appointment and transfer of District Judiciary.
The case inquired into the ambit of Article 233, 234, 309 and stated that the power to appoint

28 Constituent Assembly Debates, Volume-7, page-953,

29 1998 Supp (2) SCR 400,
30 1999 Supp (2) SCR 521,
31 2000 SCR (2) 299,

14
District level judiciary rest with Governor expressly and as condition of service are not
provided for in the Constitution, State Government may by Act provide for the same. Court
cited the speech of Dr Ambedkar to state that “the broad ambit of Article 209 and 209 F is to
provide for recruitment of Lower Judiciary and to place the judiciary under control of High
Court”. Also, relevant portion of Pt. Kunzru was cited where he stated that “Judicial wing is
separate from other wings of the Government and all the members of Constituent Assembly
believes in keeping such distinction in Free India”. Further reference was made to speech of
Dr. Ambedkar on the Structure of Judiciary where he categorically stated that “Indian judiciary
is single integrated structure with Supreme Court being the head of Family. Indian judiciary
is not in any way similar to structure of judiciary in U.S. Indian federation though has dual
polity, the same is not true for the Judiciary”32. The Constitutional provisions override all
existing laws but, on the matter, where the provisions are absent, State Legislature can provide
law regulating the Same. In this case reference to Constituent Assembly debates where useful
in understanding the Legislative intent behind these provisions but due to existence of Case
Laws they did not play any role in the outcome of the case.

State of Maharashtra v. Milind33: In this case reference to Constituent Assembly

debates was made only to ascertain the object behind Article 341 and 342. Though a reference
was made to debates of Constituent Assembly they played no significant role in the outcome
of the case. The reference was merely to develop the Contextual understanding as to why
Constitution did not provide elaborate list of Schedule Caste and Schedule Tribes. Therefore,
reference to debates of Constituent Assembly had no effect on the outcome of the case.

B.R. Kapoor v. Union of India34: This case very is imperative as it stated that Governor
must exercise his discretion mindfully while inviting a person to form Government. A person
with tainted image must not be installed as the Chief Minister of the State. As Chief Minister
is protector of the interest of his people, he must be of clean image. The reference to the
Constituent Assembly debates did play a role in the outcome of the case as the provision with
respect to same was not clear. But the reference to debates made it clear that the Founding
Fathers were of clear opinion that the Chief Minister must be competent and must be of clean
image as he is Head of State Government. Hence citation of Constituent Assembly Debates did
play a role in the outcome of the case.

32 Constituent Assembly Debates, Vol-7, 1948-49, Pg… 34-37,

33 AIR (2001) SC 393,
34 AIR (2001) SC 3435,

15
I.T.C. Ltd v. Agriculture Produce Market Committee35: Reference to Constituent
Assembly debates was made in this case only to make it clear that the scope of entries provided
must not be enlarged so as to destroy the Federal structure of the Country. The language of
provisions regarding competence of State and Central Government to legislate on matters is
quite clear and depicts no ambiguity. Hence reference to Constituent Assembly Debates had
no effect on the outcome of the case.

Pradeep Kumar Biswas v. INDIAN INSTITUTE OF CHEMICAL

BIOLOGY36: In this case reference was made to the debates of Constituent Assembly to
understand the Scope of Article 12 i.e. State. Supreme Court cited the speech of Dr. Ambedkar
who stated that “the objective of Fundamental Rights is that they available to every citizen and
are binding on every authority. Here ‘authority’ means any body which has power to
incorporate rules or laws or has discretion vested in it. Hence Fundamental Rights lies against
all Government Structure and to all instrumentalities of Government”37. And it is clear that the
phrase used by the Constitutional Framers was in wider sense and not in ordinary narrow sense.
Though the court refereed to the debates of Constituent Assembly they were merely to develop
the contextual understanding. Also, there were several cases on the issue at hand and the
reference to debates of Constituent Assembly did not play an outcome determinative role.

In Re President38: This case directly dealt with the citation of Legislative History as method
of interpretation to ascertain the intention of Legislator behind the particular Provision.
Reference was made to debates while Article 85 and 174 were being drafted by the Constituent
Assembly. Member of Constituent Assembly K.T. Shah proposed two amendments which
stated that the “Gap between various sitting of the Parliament must be reduced to maximum of
90 days so that Parliament meet at least thrice in any given year and further he proposed that
in case where Parliament fails to meet in such stipulated time Speaker may summon the house
for performing essential business transactions”. It is clear that K.T. was very concerned about
regular sitting of the house. But the Amendments suggested by the Honourable Member were
dismissed by Dr. Ambedkar by stating “what has been provided is the threshold for minimum
meeting of Parliament to conduct essential functions and it is quite clear that the legislature
will not be callous about their functions and will meet at regular interval as per the need and

35 2002 SCR (1) 441,

36 2002 SCR (3) 100,
37 Constituent Assembly Debates, Vol- 7, Pg- 676,
38 2002 SCC (8) 237,

16
requirement of the time”. This shows that Draft Article 69 was visualized in the context of a
scenario applicable only to a living and functional House and that the stipulation of six months
intervening period between the two sessions is inapplicable to a dissolved House. Further
reference was made to the debates of Constituent Assembly when the question arose as to who
will conduct the Elections of State and Central Government. In this context speech of Dr.
Ambedkar was cited where he stated that “ Without any dissent in the interest of free and pure
elections to the various legislative organs , it is imperative that the elections must be kept
beyond any kind of interference from the executive of the day. And due to this factor, drafting
committee placed the Direction, Control and Superintendence of election under separate part
of the Constitution. This was the reason that the separate and independent body of Election
Commission came into existence which was beyond the executive control of the Government.
Hence, in this case the citation of Constituent Assembly debates played significant role in the
outcome of the case and were outcome determinate.

T.M.A. PAI FOUNDATION v. STATE OF KARNATAKA39: In this case

reference was made to the debates of Constituent Assembly to ascertain the sense in which the
framers used the term ‘Minorities’ in the Constitution with reference to Article 29 and 30. It is
relevant to note that the term ‘Minority’ has not been defines anywhere in the Constitution. To
ascertain the scope of the term Supreme Court cited the speech of Dr. Ambedkar where he
stated that “the term minority has not been used in the narrow technical sense as are averse to
but has been been used to include the section of citizens who are not minorities in technical
sense but are minorities in linguistic and cultural sense.” To clarify his position Dr. Abedkar
gave an example that “suppose some Bengalis move to Maharashtra and settle there, under the
ambit of Article 29 they are cultural minority though they are not minorities in the technical
sense”. Further it is to be noted that there were two deliberations on the issue of minorities, one
was pre-partition and other was post partition. K.M Munshi who was the most vibrant in
inclusion of these rights under the head of Fundamental Rights worked towards its inclusion in
the same despite retaliation from the other members of the Constituent Assembly like G.B.
Pant who wanted these rights to be included under non-justiciable head. The aim of K.M.
Munshi was that no person should be discriminated only on the basis of religion and linguistic.
And due to his tiresome efforts, these rights were included under the Part III of the Constitution
which made these rights Justiciable. But, a final modification was introduced by Dr. Ambedkar
who was also the chairman of the Drafting Committee, he substituted the words ‘any section

39 AIR (2003) SC 355,

17
of citizens, in place of minorities to widen the scope of the Article. On father deliberation of
Article 23, Shri Thakur Das Bhargava suggested further amendment which was “No citizen
shall be denied admission into any educational institution maintained by the State or receiving
aid out of State funds on grounds only of religion race, caste, language or any of them.” The
imperative point due to which he proposed such amendment was “The discrimination in
Education Matters is not justified in any manner in the National Interest either between
Minority or Majority. And hence this amendment seeks to bring both minority and majority on
equal pedestal in education matters. And hence, this is what the liberty character is for minority
and majority students equally”. And after few more changes this Article became part of
Constitution on 9th December 1948, with the deletion of word “minority” from the body of
Article. The Amendment of Shri Thakur Das was accepted unanimously by the Constituent
Assembly. In this case, reference to the debates of Constituent Assembly did play an outcome
determinative role as the Supreme Court was directly dealing with the Question “What is the
meaning and content of the expression "minorities" in Article 30 of the Constitution of India?
And it answered the question in line with the Scope as was fathomed by the Constitutional
Framers. Further debates were also cited to ascertain the scope of “Religion” but as there were
existing case laws which dealt with the same matter, such reference did not play an outcome
determinative role. In all, the outcome of this case did have influence of Constituent Assembly
Debates and hence they were outcome determinative.

ISLAMIC ACADEMY OF EDUCATION v. STATE OF KARNATAKA :40

In this case a direct reference to the debates of constituent assembly was not made but was an
indirect reference. This case cited the discussion which was held in the case of TMA Pai
Foundation v. State of Karnataka and confirmed the decision which was arrived upon. Hence
in this case the references did not play any significant role as court relied on the precedents.
Hence the Constituent Assembly debates did not affect the outcome of the case.

SAURABH CHAUDRI v. Union of India41: In this case Supreme Court deferred from
placing reliance on the Debates of the Constituent Assembly as the existing jurisprudence on
the issue was sufficient and comprehensive. Supreme Court while rejecting the reference stated
that such construction is not required when the previous decision of the Court is in line and

40 AIR (2003) SC 3724,

41 2003 Supp (5) SCR 152,

18
where the view held is “established”. Hence in this case Supreme Court rejected the reference
to debates of Constituent Assembly expressly.

E.V.Chinnaiah v. State of Andhra Pradesh42: In this case reference to debates of

Constituent Assembly was made to ascertain whether “State Legislature” has right to meddle
with the Presidential List crafted under Article 341. While on the absence of elaborated list of
castes included under Article 341, reference was made to the Speech of Dr. Ambedkar where
he made it amply clear that “he does not favour the burdening of the Constitution with
elaborated list of Castes and he trust the Judgment of President while including certain castes
into such list. Here he clarified that though the power to include any cate in the list is vested in
the President but the power to remove any caste from such list vest only with the Parliament”.
Further reference to debates was made by the court on question, Whether State Legislature has
power to include the caste in such list? In this regard amendment by Shri Kuladhar Chaliha
was cited, where he stated that “I have always been fighting that the Governor should have
power to safeguard the rights of the Tribes. I am glad in some measure this has been conceded.
Yet I find certain amount of suspicion in that the State Legislature is neglected. The Drafting
Committee has not allowed the State Legislature to have a voice. In order to fill up that lacuna
I have said that Parliament may and subject to its decision the State Legislature.43” It is quite
clear that the honourable member wanted the State Legislature to have voice in inclusion of
the castes. But this proposed amendment was opposed by Shri V.I. Muniswami Pillai who
stated that ‘Giving voice to the State legislature will be dangerous as the leaders of certain
provinces have already tried to bring their caste into such list. But by clarifying that such
power is only vested in the President, drafting committee has subsumed the apparent danger”44.
Hence it is clear that the State Legislature were not given the power to interfere in the list
drafted by the President even by the framers. Though in this case the reference to the debates
of Constituent Assembly were to develop the contextual understanding of the language used in
the Article. Though the language of provision was absolutely clear Supreme Court referred the
debates only to develop their understanding and the reference did not affected the outcome of
the case.

42 AIR (2005) SC 162,

43 Constituent Assembly Debates, Vol-9, Pg… 1638,
44 Constituent Assembly Debates, Vol-9, Pg…1639,

19
Jamshed N.Guzdar v. State of Maharashtra:45 In this case a brief reference was
made to the debates of Constituent Assembly with regards to the judicial structure of India.
While deliberating on the Entry 55, framers stated that what is left to Provincial Legislatures
is to regulate the Pecuniary and Subject-matter jurisdiction of High Courts rest is within the
Jurisdiction of Centre”. The intention of framers was undoubtedly to integrate the judiciary in
one single structure and to bring uniformity. There is no dual judiciary in India. Though there
was reference made to Dr Ambedkar and Shri Alladi Krishnaswamy Ayyar, it did not affect
the outcome of the case as there was existing case-law precedents on the similar matter.

Godfrey Phillips(I)Ltd v. State of U.P:46 In this case reference was made to the debates
of the Constituent Assembly to ascertain the scope of Entry 62 of List II. Framing History
shows that the entry was prevented from being drafted in narrower sense and was intended to
be wider in ambit so as to include all luxury goods. Supreme Court after looking into the
legislative history and working of provision till date, stated that the entry is not intended to tax
goods or articles. There was specific discussion to include “entertainments, amusements,
betting and gambling, racing and other such luxuries" under the ambit of entry 62 of List II but
was negated on the ground that it would cut down the scope of the entry. And Supreme Court
after exploring the Legislative History and working of provision since enactment stated that
“language of Entry 62 List II does not permit the levy of tax on goods or articles, in our
judgment, the word "luxuries" in the Entry refers to activities of indulgence, enjoyment or
pleasure in as much as none of the impugned statutes seek to tax any activity and admittedly
seek to tax goods described as luxury goods, they must be and are declared to be legislatively
incompetent”. In this case while striking down the impugned legislations, Supreme Court took
the aid of Constitutional History and the decision of Court was affected by the debates of the
Constituent Assembly which is clearly reflected in the Judgment of the court.

State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat:47 The reference to

Constituent Assembly Debates was merely to highlight the significance of the Directive
Principles of State Policy. Supreme Court referred to debates and stated that “it was Sapru
Committee which opined for two forms of Rights; one justiciable and others non-justiciable.
The former was labelled as Fundamental Rights and the later, as Directive Principle of State
policy which though not justiciable but State was obligated to employ them while framing

45 2005 SCR (1) 223,

46 2005 SCR (1) 732,
47 AIR (2006) SC 212,

20
policies.”48 Though the debates were cited by the Court they did not play any role in the
outcome of the case.

Zee Telefilms Ltd. V. Union of India49: The reference to Constituent Assembly

Debates in this case was to ascertain the scope of term “other authority” under Article 12 of
Indian Constitution. For the said purpose reference was made to the debates of Constituent
Assembly where Dr. BR Ambedkar stated that “term other authority includes such other bodies
created under the statute and have power to make rules/laws and also has power to enforce
those rules”. He clearly stated that “in spite of using composite terms such as “State” or
“Central or State Government” we must use much more comprehensive term and economise
the vocabulary we chose”50. Hence, it was clear that the Constitutional Framers gave an
expansive definition to word “State”, but as there were existing case laws on the same matter
citation of debates only developed the conceptual understanding and did not affected outcome
of the case.

Rameshwar Prasad v Union of India:51 It is essential to know that; Dissolution of State

Legislature is to be done sparingly and upon strong reasons only. In this case upon Governors
Report, President dissolved Bihar Legislative Assembly which had a fractured mandate and
Supreme Court was tasked to evaluate whether such extreme measure was required? In the
Present case court extensively referred to the debates of Constituent Assembly. As the case had
elaborated reference to the debates of Constituent Assembly I will systematically highlight
every question for which reference was made: -

1. On Question of Elected Governor: Court cited the words used by Sir Allady
Krishnaswamy Ayyar that “rather than having Elected Governor we must have
consultation with provincial legislature before appointing a Governor. And I believe
convention regarding consultation with provincial legislature will easily grow up as
has developed in Canada”.52 Also reference was made to speech of Pt. Jawahar Lal
Nehru where he clearly stated that “Governor must be agreeable to Provincial
Government but still must not be considered as part of Government but must have
Independent existence with fewer common links with both Centre and Provincial
Government.” He further stated that “an elected Governor would be detrimental to

48 Constituent Assembly Debates, Vol-7, Pg… 41,

49 2005 SCR (2) 913,
50 Constituent Assembly Debates, Volume VII, Pg…610,
51 2006 SCR (1) 562,
52 White Paper on the Office of Governor, 1983,

21
 Provincial Legislature as he may possess separatist tendencies”. Governor was
believed to be a vital link between Union and State Government was placed as
Constitutional head of the State Government. Here the debates were cited to develop
the understanding why Constitutional Farmers rejected concept of Elected Governor.
2. On Question of Discretionary Powers: After wide spread opposition from various
members of Constituent Assembly regarding the discretionary powers of Governor
under Article 163, Dr. Ambedkar made it clear that “it is not contrary to responsible
Government to invest Governor with discretionary power”53. But the fact that
Governor is invested with discretionary powers makes his functioning more onerous
as he has to use his discretionary power only in cases where exist compelling reasons
to do so. There was extensive citation of debates which took place in the Constituent
Assembly between 1st June 1949 to September 1949, where the members discussed
extensively on Article 14354. Shri H.V. Kamath agitated discretionary power ascribed
to the Governor and stated that “Except in circumstances of Emergency, Governor
must not be invested with any discretionary power”. Mr. T.T. Krishnamachari while
opposing the proposed amendment of Mr. Kamath Stated that “Mr. Kamath has failed
to comprehend the true scope of this Article, as under normal circumstances Governor
is to act upon aid and advice of the Chief Minister and other Council Ministers. It is
only under exceptional circumstances where Governor will be allowed to use his
discretionary power”. Another member of Constituent Assembly, Shri Brajeshwar
Prasad, went overboard and stated that “Governor must be given more power than has
been granted to him under the present provisions”. He went on and stated that “if
Indian wants to avoid anarchy, blood-shed, arson more power must be given to
Government of India, Federalism is not suited for Indian condition and must be
deleted from the current provisions of Constitution”. The proposed change of Mr.
Kamath and Shri Brajeshwar Prasad was rejected by the Drafting Committee. Even
other member of Constituent Assembly Prof… Shibban Lal Saksena stated that
“Discretionary power must not be invested in the nominated Governor, as he would
exploit them citing the precedents of British Governors which will be dangerous to
Constitutional Fabric and due to this Governor must not be given any discretional
power”. But due to widespread opposition from the all sides of Constituent Assembly
most of the discretionary power were withdrawn and only it was Article 163 which

53 Constituent Assembly Debates, Revised Edition , Vol-8, Pg…502,

54 Currently Article 163,

22
 was left with the discretionary power which rested in the Governor. Here the debates
were cited to make it clear that the Framers placed their confidence in position of the
Governor and believed that Governor will use his discretionary powers sparingly and
will instead work towards strengthening State machinery instead through his
discretionary powers.
3. On question of inserting schedule for use of discretionary powers: It was opined
by various members of Constituent Assembly that a schedule must be inserted along
with the Constitution, which will provide circumstances under which such
discretionary power would be used by the Governors. But such was not appended to
the Constitution as Shri AG Noorani stated, “conventions could be codified only if they
are allowed to exist’55. Hence it was made clear that it was best to adopt incremental
approach regarding codification of conventions and to leave it to the best judgment of
Constitutional Dignitaries.
4. On the Question of Article 356: Members of the Constituent Assembly debated at
great length on this Article. The then Articles 188 was removed which gave the power
of imposing emergency on account of failure of Constitutional Machinery to Governor
and Article 278 was reworked so that there could be solution in case of Constitutional
Breakdown which is agreeable to all members. While Speaking on the scope of
Centres Power to impose Emergency in State, Pt. Kunzru stated that “such power is
used by the Central to ensure Good Government and not law and order or peace and
tranquillity. The Central Government can take over the control, in case there is wide
spread misadministration in the State”. As more and more members stated that the
power to impose such Emergency is legacy of British Bureaucracy it must not be
provided in the Constitution. Dr. Ambedkar after five hours of debate on this Article
stated that “Only when State is not working within the four corners of the Constitution,
this provision will be used and not otherwise. And whether there is question of Good
Government or not, it is for centre to decide”. Here it was made clear that the provision
is to be used only when there exist certain exceptional conditions and not under normal
scenario.

Dr. Ambedkar made it clear that the “Constitution is not good or bad but it is people who make
it so. There can not be any value judgment on nature of the Constitution at this stage”. He
quoted the statement of Jefferson who was instrumental in drafting of constitution that “We

55
AG Noorani, Constitutional Question in India, Oxford University Press, 2000, Pg…11,

23
may consider each generation as a distinct nation, with a right, by the will of the majority, to
bind themselves, but none to bind the succeeding generation, more than the inhabitants of
another country”. Dr Ambedkar further stated that “What Jefferson stated was absolutely true
and has been followed by the Indian Constituent Assembly. The Assembly has not sealed or
given finality to the provisions but has kept them open for expansion as per the time and
requirement”. And this Constitution has given equal position to the State when any
Amendment is to be brought and no one in this assembly can state that this Constitution is
Centralism. Even courts what they can do is modify and not replace any constitutional
provisions. And from the above it can be opined that the Governor is very important person in
the Constitutional Setup and when his working is questioned it is not the Constitution who is
to be blamed but the political parties who have politicised the post of Governor which is not
healthy for the democracy. Even when Gandhiji was asked to call for deletion of position of
Governor he instead asked for its retention. Court took into account the elaborate debates of
Constituent Assembly and even reflected the same in decision of the Court. In present case
citation of debates did play an outcome determinative role as Supreme Court stated that the
Governor acted not in accordance with the provisions and conventions of the Constitution and
the use of Article 356 was uncalled for in the case of Bihar Legislative Assembly.

Kuldip Nayar v Union of India56: In this case reference to debates of Constituent

Assembly were made to establish that the Constitutional Framers never intended “domicile”,
as a criterion for election to Council of States. The debates were further cited to state the
importance of Council of States under the Constitution of India. On 28th July 1947, Constituent
Assembly debated on this very topic and stated that “the object of having upper house is to
have comprehensive debate among the persons who had specific knowledge on respective
fields”. On that day itself it was decided that the Federal Parliament shall consist of two houses
i.e. upper house and the lower house. And the entire point of citing legislative history was to
state clearly that “residence was never a constitutional requirement and it never constituted as
an essential ingredient of Council of States”. Further the Legislative History also establish that
the requirement of residence was never a constant factor and varied from time to time as per
requirement. The Legislative history clearly contemplates “Residence” was only a qualification
which Parliament may prescribe from time to time and is merely incident of Federalism which
is capable of being prescribed from time to time. Indian Constitution, unlike American
Constitution does not aspire for residence as a Constitutional requirement. Answering the

56 2006 Supp (5) SCR 1,

24
queries raised by Shri T.T Krishnamachari regarding the Centralism of Constitution, Dr. BR
Ambedkar stated in clear and unambiguous term that “all such criticism of Constitution is based
on misunderstanding as to what Constitution purports to do. The basic feature of Federalism is
that the Legislative and Executive authority is clearly demarcated between centre and state and
this feature has been coherently followed throughout the Constitution. Indian Constitution is
Federal in character, there should be no doubt about it.” Hence in this case the debates as were
referred by the Supreme Court clarified the position that it was not the intention of
Constitutional Framers to keep residence as basic feature for election to Council of States. The
citation of debates did have an outcome determinative effect.

Raja Ram Pal v. THE HON'BLE SPEAKER, LOK SABHA57: In this case the
reference was made to the Speech of Dr. Ambedkar where he stated that “Unlike the American
arrangement of Government, India will have more vibrant form of system which is visible in
the House of Commons of Britain, which involves periodic assessments, voting, no confidence
motion etc… India requires such Parliamentary system and also the privileges which is
accorded to the members of House of Commons”. And hence we borrowed Parliament
Privileges from United Kingdom. But this was opposed vehemently by Shri H.V Kamath who
stated that “instead of borrowing those provisions from Britain we must rely and develop our
own traditions and customs. It is quite unnecessary to borrow the same privileges which we
objected to at the time of Freedom struggle.”58 Replying to the criticism raised by several
members of the Constituent Assembly, Sir Alladi Krishnaswamy Iyer stated that “The
privileges are practical requirement and Members must understand its importance. Recently
in Calcutta Legislature was unable to punish member as there was no such provision. In the
current scenario we must have the power to punish members for contempt. India is not the only
country to invoke the same but similar privileges exist in Parliament of Canada also hence we
must not bring out our sentiments while looking at the beneficial side of Privileges. Moreover,
the provisions have been drafted in such manner that the Parliament may provide for privileges
at later point of time there is no curtailment on the discretion of Parliament they may either
enlarge it to curtail it, the whole discretion has been vested in Parliament but as a temporary
requirement they must be accepted by the Members. There must be no issue with reference to
borrowing of these provisions as they are required by the Parliament”. And the Privileges were
adopted in the Constitution with minor amendments. But as Shri HV Kamath again objected to

57 2007 SCR (1) 317,

58 Constituent Assembly Debates, Vol-8, Pg. 143-149,

25
it and criticized for not specifying the Privileges, Dr. Ambedkar replied in following terms
“privileges are required by the Parliament. There are individual privileges where members are
allowed to vote and enjoy freedom of speech, immunity from arrest and there are others which
cannot be precisely defined as they require considerable discussion. But these privileges are
imperative because the house will function in various environment which would require certain
protection to the members and privileges would then be employed for smooth functioning of
the House. “Supreme Court came to conclusion that the Parliament was left with wide spread
discretion to provide for its own privileges and also the Constituent Assembly was justified
while borrowing the privileges of that of House of Commons as temporary measure. And
Supreme Court here dismissed the contention of Council that the Parliament has widen the
discretion with 44th Amendment. But in this case despit Constituent Assembly providing that
the Courts will not inquire into the internal proceedings of the House and even the interference
by Courts as suggested by HV Kamath, the member of Constituent Assembly, being discarded
by Dr. Ambedkar, Supreme Court held that “the Court cannot turn blind eye when the act is
wholly unlawful and unconstitutional. Hence Supreme Court has power to Judicial Review”.
In this case though debates were used to reject certain contentions, supreme court did not rely
on the Debates of Constituent Assembly while deciding the matter and hence they were not
outcome determinative as there were existing case laws supporting the Action of Parliament.

I.R. Goelho (Dead) By LRs v State of Tamil Nadu59: In this case the Debates were
cited merely to develop the understanding of the “Constituent Power”. But as it was already
decided in the Keshav Nanda Bharti v State of Kerala that “The constituent assembly had
unfettered power to constitute Constitution whereas the Parliament has derivative Constituent
Power which is subject to the provisions of the Constitution.” Hence, the citation of debates
did not affected outcome of the case.

Ashoka Kumar Thakur v Union of India60: The debates of constituent assembly in

this case were cited to establish that the Framers of Constitution were aware of the Caste
System and Class divide which exist in society and they drafted the provisions in the
constitution to address these evils. Pt Jawahar Lal Nehru speech was cited where he stated that
“the highest priority of the Constitution is to remove socio-economic inequality without which
the Constitution will be useless and purposeless61. Further citation was made to the speech of

59 2007 SCR (1) 706,

60 2008 6 SCC 1,
61 Constituent Assembly Debates, Vol-II, Pg… 317,

26
Dr. Ambedkar on Equality where he stated that “In India there is absence of two things i.e.
Social Equality and Economic Equality. Instead what exist is elevation for some and
degradation of rest and the vast wealth is segregated in hands of few”.62Even the reference was
made to the speech of Rajendra Prasad where he highlighted that the aim of this Constitution
is to bring about equality and abolish hunger, discrimination and differences63. Further debates
were cited to show that the Framers intended to give preferential treatment to the backward
classes and members agreed to the same. In this case though citation of debate did not play an
outcome determinative role but they were used to state that Intention of Framers while drafting
the Constitution, which was to establish casteless and classless society.

State of West Bengal v. Committee for Protection Democratic Rights64: In this

case reference was made to the debates of Constituent Assembly to highlight the fact that power
of Judicial review is part of basic structure of the Constitution and even Parliament can not take
away this power by subsequent amendment. In this case citation of debate did not play any
outcome determinative role.

Bhim Singh v Union of India65: In this case the reference was made to the debates of
Constituent Assembly to establish that “the framers never intended to curtail the power of
Centre or State under article 282 to grant funds for any public purpose”. Though in this case
MPLAD scheme was justified by the Court, reference to debates did not play an outcome
determinative role.

B.P. Singhal v. Union of India66: In this case reference was made to the debates of
Constituent Assembly to highlight the vision of Constitutional Framers while drafting the
provisions related to appointment and role of Governor. In this regard speeches of Dr.
Ambedkar and Pt. Jawahar Lal Nehru were cited to state that the Governor was encapsulated
with a very imperative role in the Constitutional Structure and he was to be appointed among
the persons who had no active role in politics and should have high regards in the eyes of
people. Further, the debate was cited to state that the Governor had security of tenure and could
not be removed otherwise than on the ground provided in the Constitution. Even the
amendment of Mr. KT shah was cited where he called for an amendment that “Governor shall

62 Constituent Assembly Debates, Vol- XI, Pg… 979,

63 Constituent Assembly Debates, Vol-Vol-5, Pg…2,
64 2010 SCR (3) 979,
65 2010 SCALE (5) 37,
66 2010 SCALE (5) 134,

27
be appointed for a term of 5 Years and shall be irremovable during such term”. But later he
also suggested acceptable grounds for the removal of Governor. Professor Shibban raised an
imperative question on independence of Governor, if he is to serve only on during the pleasure
of President. His point was, if the Governor is to serve only during the pleasure of President
and not for fixed term this will seriously undermine his independence. But both the
amendments were rejected by Dr. Ambedkar as he stated that the President has the General
Power with regards to removal of Governor and such is enough to act in cases of Corruption
and violation of Constitution, and hence the serving of Governor during pleasure of President
suffices everything and there is no need for further amendment in the Article. Though both the
sides in the case relied on the Debates of Constituent Assembly but Supreme Court took aid of
Precedents and not the Debates of Constituent Assembly. In this case though the debates were
cited they did not affected the outcome of the case.

GVK INDS. LTD v THE INCOME TAX OFFICER67: A short reference was
made to debates of Constituent Assembly to ascertain the scope of Article 245. Supreme Court
stated that “drafters were well aware of the distinction between ‘operation of law’ and making
of law’ hence we cannot conclude that the Framers intended to keep the separation between
clause 1 and 2. And clause (2) cannot be enumerated as separate legislative power”. On Article
51, words of Professor Khardekar were cited where he stated that “The part that India is to
play is certainly very important because foundations of international morality have to be laid
and only a country like India with its spiritual heritage can do it…… Therefore it is in keeping
with our history, with our tradition, with our culture, that we are a nation of peace and we are
going to see that peace prevails in the World”. In this case the citation was done only to develop
the understanding of Principles behind the Article and hence they were not outcome
determinative.

SPECIAL REFERENCE NO.1 OF 201268: The reference to constituent assembly

debates in this Particular case was by the Respondent Lawyer where he highlighted the debates
which took place in Constituent Assembly while drafting the Article 143 of the Constitution.
Here the debates were cited to state that the power of reference by the President was intended
by the Framers to be used sparingly and not for each and every other matter. It is an exceptional
power to be used in exceptional circumstances. But as there were enough precedents that

67 2011 SCR (3) 366,

68 2012 SCR (9) 311,

28
President can use advisory opinion of Supreme Court that the reference to debates had no effect
on the outcome of the case or for the specific purpose for which it was cited.

Pramati Educational & Cultural Trust v. Union of India69: The reference to

debates of Constituent Assembly in this case was merely to highlight the fact that it was never
the intention of Constituent Assembly to abrogate the rights of Minorities instead all the
important members of Constituent Assembly vowed to protect the minority rights. In this case
the citation was merely to develop the understanding of Minority rights and view held by
Constitutional Framers hence they did not play any outcome determinative role.

Manoj Narula v Union of India70: In this case reference to the debates of constituent
assembly was made in reference to the Article 75 of the Constitution. It was stated that there
exist Constitutional Trust in the Prime Minister and such trust is inherent to the Constitution.
On the Constitutional Trust debate, when Prof… KT Shah suggested that the convicted person
must be disqualified from becoming the Minister, Dr BR Ambedkar stated that “it is not
desirable to burden the Constitution by providing such qualifications, it must be left to the good
sense of Prime Minister, Legislature and People at Large. And therefore, it is not necessary to
proceed with the amendment”. Though the citation of debates was for the purpose of
highlighting the Constitution Trust vested in Prime Minister and other State Ministers, the court
relied on the plethora of Judgment to decide the issue in current case. Hence the decision of
court was not affected by the Debates of Constituent Assembly.

Mohd. Arif @ Ashfaq v Registrar of Supreme Court71: In this case reference was
made to the debates of Constituent Assembly to highlight the sharp divide within the members
of Constituent Assembly on the issue of Article 21, whether “due process” must be included
which was vehemently supported by Shri Munshi and on other side it was Shri Alladi
Krishnaswamy who supported “taking life and liberty by legislation”. The divide was so wide
that Dr. Ambedkar left it for the house to decided as to what must be adopted and the
Constituent Assembly supported the view of Shri Alladi Krishnaswamy and rejected the “due
process” provision. This action of the house rejecting the “due process” clause was explained
by Dr. Ambedkar at later point of time stating that “Article 21 itself provide for the authority
to arrest a person and deprive him of his liberty under the procedure established by law”.

69 2014 SCALE (7) 306,

70 2014 SCALE (9) 600,
71 2014 SCALE (10) 84,

29
Though the Court used the debates to develop contextual understanding, it has no relevance
whatsoever on the outcome of the case.

U.P. Hindi Sahitya Sammelan v State of UP72: In this case the reference was made
to the Debates of Constituent Assembly with regards to Part XVII of the Indian Constitution.
The Constitutional advisor stated that controversy in following words “The issue of official
language produced so much turbulence from the very outset and all efforts were made to keep
it away from direct discussion. All efforts made to carve out a solution fell on the ground and
it was not before the end of drafting process that a solution was reached out”73. In the same
chapter it was stated that “When the question of the setting up of a committee on the rules of
procedure was discussed, R. V. Dhulekar moved an amendment proposing that the committee
should frame rules in Hindustani and not in English. The Chairman requested him to speak in
English, as many members could not understand Hindustani; but Dhulekar not only insisted
on speaking in Hindustani but made the remark that those who did not know Hindustani had
no right to stay in India and were not worthy to be members of the Assembly”. It is imperative
to note that neither the Draft Constitution prepared by Constitutional Advisor neither the
Constitution prepared by Drafting Committee contained any provision in regards to Official
Language but only contained provisions as to what must be language which will be used in
Parliament and State Assemblies. It is also to note that the compromise formula termed as
Munshi-Ayyangar formula was half heatedly adopted by the Constituent Assembly which
provided that there should be one language selected among others which will be common for
whole of India and that the numerals to be used for all official Union purposes should be what
have been described as the all-India forms of Indian numerals. The Court in this relied on the
Constitutional Debate to develop their understanding regarding scope and ambit of Part VII.
The Court ruled in favour of UP legislative assembly and stated that the declaration of Urdu as
second official language is Constitutional and in the spirit of achieving Language Secularism.
Hence debate did not affected outcome of the decision.

Madras Bar Association v. Union of India74: This case made a short reference to the
debates of Constituent Assembly to highlight that the power of Judicial review is inherent to
the Constitution and it is not limited to check legislative competence of Centre or State but also
to check whether the act in question is in spirit of the Constitution or in violation. In regards to

72 AIR (2015) SC 1154,

73 B Shiva Rao, Framing of Indian Constitution, Vol-IV, Chapter-26,
74 AIR (2015) SC 1571,

30
Article 25, which is Article 32 in current Constitution, Dr Ambedkar made a very significant
statement that “It is most imperative and is heart and soul of the Constitution”. The reference
was to highlight the significant of Article 32 and consequent power of Judicial Review. The
reference to debates did no affected outcome of the case.

Supreme Court Advocates-on-Record Association and another v. Union of

India: - In this case the challenge was to the Amendment 99 of the Constitution which
provided for the National Judicial Appointment Commission. The debates were extensively
cited in this case to establish that the Independence of Judiciary was imperative for
Constitutional Supremacy and later it was cited to highlight the debate on concurrence and
consultation. While deciding upon the case Judges clearly stated that while interpreting the
Constitution, object-oriented approach must be followed and not the narrower approach.
Constitution must not be interpreted in pedantic and mechanical sense. The debates in the
Constituent Assembly clearly stated that the Assembly rejected the veto power of Chief Justice
in case of appointment of the Judges. In this regard speech of TT Krishnamachari was cited
where he stated that “It is of no doubt that house agrees on the matter that Independence of
Judiciary is formidably important but at the same time it is to be kept in mind that this house
is not intending to create any special bodies which Imperium in Imperio i.e. completely
independent from the Control of Executive and Legislature”. On same issue speech of Dr.
Ambedkar was cited where he stated that “House in general agrees on the Independence of
Judiciary but at the same time we do not was to create any institution which is ‘Imperium in
Imperio’ and hence the new Amendment I propose steer the middle view and we are able to
accommodate both Independence of Judiciary and also defer from creating any Imperium in
Imperio Institution.” It was vehemently argued by the Government that the Second Judges
Transfer Case and the contemporary appoint scheme for judges is against the Constitutional
Scheme and surrounding provisions of the Constitution. Government vociferously argued that
the Constituent Assembly specifically disregarded the vesting of appointment power in
Judiciary. And despite this clear demarcation the second and the third judges has done the same
thing and it has created ‘Imperium in Imperio’ body for appointment of Judges. The
Government contended that Supreme Court has disregarded the intention of Framers and has
adopted legislative approach and not an interpretative approach. Further court referred to the
debates of Constituent Assembly to state that the mentioning of word ‘consultation’ was
Constitutional Courtesy and was mentioned as high constitutional dignitaries were involved.
Speaking on Separation of Executive and judiciary Pt. Jawaharlal Nehru stated that “Separation

31
of Judiciary and executive is what every one in the house agrees upon and a provision to that
effect in the constitution would be making that intention very clear. But as India is transition
mode such provision could hamper the development and may upset apple cart in some area.
Hence keeping such provision as a directive is imperative as it talks about ideal we want to
achieve and hence I endorse the amendment of Dr. Ambedkar on issue of separation of
Powers”. The amendment of Dr. Ambedkar was endorsed by several other members of the
assembly also specially by Dr. Bakshi Tek Chand who clearly stated that this is not a new
demand but has been raised since 1852. And hence court stated that principle of “Separation
of Powers” is engrained in the Constitution and there can be no role awarded to Executive in
the administration of Judicial Organ. And on this consideration court held that there was
harmonious construction of Constitution in Second Judges Case and Court never trespassed its
limit and Consultation therefore must mean primacy of Chief Justice opinion in appointment
of Judges. It can be seen that the Court inferred from the debates of Constituent Assembly that
they clearly deferred from vesting power in either of the Organ and on other hand clearly chose
not to vest that power in Executive as they discarded American Method of the appointment of
Judges. Hence Court here used the debates to justify their approach with regards to the
appointment of Judges and discarded the National Judicial Appointment Commission
Amendment by stating that it affected the Independence of Judiciary. The debates were further
cited to state that the Constitutional Framers did accord some respect to the Conventions and
provided that such conventions developed for advancement of Constitution ideals must be
respected and obeyed. And hence the debates referred by the Court clearly spell out following:
-

• The independence of the judiciary was unflinchingly accepted by all policy and
decision makers;
• The appointment of judges of the Supreme Court and the High Courts was to be through
a consultative process between the President and the Chief Justice of India, neither of
whom had unfettered discretion in the matter;
• In any event, the political executive had no role or a very little role to play in the
decision-taking process. Notwithstanding this, the political executive did interfere in
the appointment process as evidenced by the Memorandum prepared in the Conference
of Chief Justices by, inter alia, recommending persons for appointment as judges of the
High Court. Resultantly, the appointment of judges to the High Courts was not always

32
 on merit and sometimes without the recommendation of the Chief Justice of the High
Court;
• A constitutional convention existed that the appointment of judges should be made in
conformity with the views of the Chief Justice of India;
• The proposal for the appointment of a judge of the Supreme Court or a High Court
could originate from the President (although it never did) or the Chief Justice of India
and regardless of the origin, it would normally be accepted. However, the possibility of
the President giving in to political or party pressures was not outside the realm of
imagination.
• Historically, the Chief Justice of India was always consulted in the matter of
appointment of judges, and conventionally his concurrence was always taken regardless
of whether a recommendation for appointment originated from the Chief Justice of the
High Court or the political executive. It is in this light that the discussion in the
Constituent Assembly on the issue of appointment of judges to the Supreme Court and
the High Court’s deserves to be appreciated.
• It remained a grey area whether in the appointment of judges, the President was
expected to act on his/her own or on the advice of the political executive75.

Even a concluding remark was made by Constituent Assembly Chairman where he stated that
“I hope that the lower judiciary will also be made independent from the extraneous affect of
Executive and State Government must take all measure to realize it through Constitutional
Provisions”76. In this case debates were extensively cited and were effectively used by Judges
to establish their point. Hence debate along with Case-laws did affected the outcome of the
Decision.

Union of India v Sriharan @ Murugan77: The reference to debates of Constituent

Assembly in this case was to decipher the true nature of Executive power of Centre and State.
Supreme Court in order to trace the cardinal principle of executive power in Federation Setup
referred to the Constituent Assembly debates and stated that “it is based on series of agreements
and series of compromises.” In this regard speech of Dr. Sachidananda Sinha was cited where
he stated that “the judicious compromises and reasonable agreements is nowhere more

75
Supreme Court Advocate on Record Association v. UNION OF INDIA, Para 549, Summation of Constituent Assembly
Debates,
76 Constituent Assembly Debates, Volume-11, Pg…12,
77 2015 SCALE (13) 165,

33
required than while framing the Constitution. If we aspire constitution to last till eternity and
face all future eventualities with adamantine strength we must frame this Constitution keeping
in mind such cardinal principles”. Reference was also made with respect to Article 59 and 60
which today stand as Article 72 and 73 where an amendment was suggested by the Member of
Constituent Assembly where he stated that “the power to commute, remit or suspend sentence
of death must remain only with President of India as he is executive head and must not be given
to State or Provincial Government as it is Supreme Power”. In reply to the amendment Dr.
Ambedkar stated that “the power to commute any sentence is vested in President if such was
ordained under Federal Law and with State if such was awarded under State Law. But sentence
of Death can be commuted only by President irrespective of law under which it was awarded,
and such is the scheme”. Both the amendments suggested were negated by Dr. Ambedkar and
in reply to objection that Centre has overwhelming power and it seems more of Unitary
Government, Dr. Ambedkar clearly stated that “such is not true and it is only in exceptional
circumstances that centre is given overwhelming power”78. In this case the reference to debates
of the Constituent Assembly was merely to build a background of Commutation Principle. The
Judgment of the court was based on the precedents and external aid did not affected outcome
of the case.

MODERN DENTAL COLLEGE v STATE OF MADHYA PRADESH79:

Reference to Constituent Assembly Debates in present case was made to understand the scope
of Entry 66 under list I and to understand the context in which the word “Co-ordination” and
“Determination” were used in Entry 66. The limited purpose for which the reference was made
served fruitful purpose as the Debates clearly indicated the intent behind the Entry-66 of List
I. The relevant part of debates cited by Supreme Court are: First, the Statement made by Dr.
B.R. Ambedkar who Stated that “after entry 57 of List I, the following new entry be inserted:

“He clearly stated that Centre has been given limited coordination power and to maintain the
standard of such institution of Higher Studies in Scientific, technical and research sector”.
Further he stated that “in the proposed new entry 57A of List I, for the word 'maintenance' the
word 'determination’ be substituted”. Objecting to the proposed Amendment V.S. Sarwate
contemplated that “The modern trend in education is that education should be adapted to each
individual so that the personality of each individual might be developed to its fullest extent, of
course consistently with the personalities of other individuals. If this is the desideratum in

78 Constituent Assembly Debates, Volume-7, Pg… 1129,

79 2016 SCALE (4) 478,

34
education, then there must be full scope for variety. There should not be any uniformity in
education as uniformity would kill the growth of the individual. Nobody can say that there
should be a standard of intellectual weights and measures for human beings. Therefore, I think
that education should be left entirely to the provinces.”

Elaborating upon the proposed Amendment and clarifying to the other members of Assembly
Dr. Ambedkar Stated that” This entry merely deals with maintenance of certain standards in
Institutions which impart higher education. You may ask, "why this entry?" I shall show why it
is necessary. Take for instance the B.A. Degree examination which is conducted by the different
universities in India. Now, most provinces and the Centre, when advertising for candidates,
merely say that the candidate should be a graduate of a university. Now, suppose the Madras
University says that a candidate at the B.A. Examination, if he obtained 15 per cent of the total
marks shall be deemed to have passed that examination; and suppose the Bihar University says
that a candidate who has obtained 20 per cent of marks shall be deemed to have passed the
B.A. Degree examination; and some other university fixes some other standard, then it would
be quite a chaotic condition, and the expression that is usually used, that the candidate should
be a graduate, I think, would be meaningless. Similarly, there are certain research institutes,
on the results of which so many activities of the Central and Provincial Governments depend.
Obviously, you cannot permit the results of these technical and scientific institutes to
deteriorate from the normal standard and yet allow them to be recognized either for the Central
purposes, for all-India purposes or the purposes of the

State”.80 The discussion of Debates enabled the Supreme Court to understand the Contextual
meaning of the word “determination” mentioned in Entry 66 of List I. Supreme Court gave the
contextual meaning of term in light of the Scheme of Constitution which aspires for Coherence
between State and Central Government and Certainty in the ‘standard’ of Higher Education
throughout India. Reference to debates was fruitful in forming understanding behind the Entry
66 of List I. Though the reference to debates did not affected the outcome of the decision but
it clearly espoused the contextual understanding of Entry 66, which was to enable Central
Government in determining the standards for higher education across India and to deprive the
States from doing the same as such will create anomalies and would be deterrent to the object
of Framers who aspired for uniformity in Standard. The citation of debate clearly developed

80 Constituent Assembly Debates, 32st August, 1949, Volume 9,

35
the understanding of Entry 66 under List I of Seventh Schedule but did not affected outcome
of the Case.

Nabam Rebia and Bamang Felix v. Deputy Speaker81: Reference was made to the
debates of Constituent Assembly in this case was to show that the Governor was required to
function on aid and advice of Chief Minister and Council of Minister and the Discretionary
power was limited only to the extent provided by the Constitution. In this regard speech of Shri
HV Kamath was cited where he suggested an amendment that “the word discretion must be
removed from the Article 143. He further stated that the current provision has been blindly
copied from Government of Indian Act, 1935 and there has been no mature discussion on this
point. There is no reason to give discretionary power to the Governor and same has been
accepted by Dr. Ambedkar during the debates in Constituent Assembly. And when the House
has decided on the point that the Governor would be nominated, I believe vesting of
discretionary power in Governor would be against the tenets and principle of Constitutional
structure we are establishing through this Constitution”82. The suggestion of Shri Kamath was
objected to by Sir TT Krishnamachari where he stated that “the amendment suggested by my
honourable friend is misconceived and arose due to misunderstanding of the scope of this
Article. The general scheme of this Article is normally Governor is to act on aid and advice of
the Council of Ministers but he can exercise his discretion only where it is so spelled out by the
Constitutional provisions only. If the discretion is to be removed, it must be removed from all
the subsequent provisions which allows the exercise of discretionary power by the Governor.
I am in favour of limiting the Discretionary power but in the current circumstances article must
be passed without suggested amendment.”83 Even Alladi Krishnaswamy supported the Article
in its present form on the same line as of Sir TT Krishnamachari. Even so there was heated
debate between HV Kamath and Dr. Ambedkar on the same point but they did not result in any
change in the Constitution and were more or less similar to what has already been stated by
Alladi Krishnaswamy and Sir TT Krishnamachari. But one thing is very clear that apart from
the Constitutional Discretion vested in Governor, he cannot act in his personal capacity which
trespasses his scope of discretion and oversteps into executive domain. Hence Governor has
nor right to decide upon the business of house as he had no such power in his discretion. And
same is clear from the statement of Dr. Ambedkar that “Governor has no function under
Constitution which he can discharge on his own, no function at all.” Even on issue of Removal

81 2016 SCALE (6) 506,

82 Constituent Assembly Debates, Volume-8, 1949,
83 Constituent Assembly Debates, Volume-8, 1949, Pg…490-502,

36
of Speaker Supreme Court referred to the debates of Constituent Assembly and stated that
“Constituent assembly specifically chose to reject words “all members present and voting” and
chose “all the then members of the house”, which clearly answers the controversy at hand and
does not allow speaker to disqualify the Members during the time notice of his removal is voted
upon”. Even the debates of Constituent Assembly clearly establish that the “Governor has no
power to summon the house and such is clear from the amendment of Dr. Ambedkar where he
suggested the disentitlement of Governor from summoning the house and such was accepted
by the Assembly without much of a debate. In this case debates were used by the Supreme
Court not only for developing contextual understanding but also which deciding on the
controversy at hand. Hence the use of debates in this case had an effect on the outcome of the
case.

JINDAL STAINLESS LTD v. State of Haryana84: In this case reference was made
to the debates of Constituent Assembly only to state that the India Constitution is federal in
nature. Dr. BR Ambedkar while replying to anxieties of several members stated that “the
misconception of several members is due to the misunderstanding as to what this Constitution
purports to do. The Constitution is Federal in nature and there is no doubt as the basic
principle i.e. division of power between Centre and State has been clearly demarcated and it
is only in exceptional circumstance where Centre legislates in matters allotted to State.”
Further on use of Non-obstante clause in the Constitution, Supreme Court referred to the
debates of Constituent Assembly where Dr. PD Deshmukh lashed out for using this clause at
several places in Constitution and stated that “The word “notwithstanding” has been used so
many times in the constitution that t it will take years to find the real meaning of such clauses
and the use of such word is so extensive that it far exceeds the term “Constitution” or
Parliament in the Constitution”85. The fact that Dr. DP Deshmukh wanted to highlight was the
Constitution provision must be simpler and clear. The Constitution must be understandable to
normal people and must not be a Lawyers Constitution where there are so many loopholes that
it become paradise for the lawyers. While Shri Deshmukh was commenting on the abstract
nature of Articles 301 to 305, Shri TT Krishnamachari stated that “restrictions on state is
warranted as we have to prevent the economy from the narrow policies of state which might
86
affect economic eco-system of whole country.” It is to be noted that the Freedom of Trade
and Commerce was aspired to be Fundamental Right but it was dropped out but still such it

84 2016 SCALE (11) 1,

85 Constituent Assembly Debates, Volume- 9, Pg… 1131,
86 Constituent Assembly Debates, Volume- 9, Pg…1139,

37
was regarded imperative by the Framers and was thus given Constitutional Status. Constituent
Assembly adopted the Freedom of Trade and Commerce clause from American and Australian
but they were incorporated after bringing about necessary changes as per the local conditions.
Though certain members wanted the Centre to have overwhelming power in matter of Trade
and Commerce but such was negated by Alladi Krishnaswamy in following words “In
Federation you have to first evaluate your decision in wider interest of the nation and permit
such trade and commerce as far as possible but on the other hand, you cannot negate totally
the regional concerns and lastly in case of conflict the power to resolve must rest with Centre.
And the current scheme has been placed before house after considering all these factors”. On
Articles relating to Freedom of Trade and Commerce Dr. Ambedkar clearly stated that “it is
not the intention of house to make the trade absolutely free, we cannot deprive Centre or State
from regulating such activity but what we aspire to is to put a limitation on such power and in
the larger interest any law restricting such activity must be assented from President”87. Further
on reasonable restriction which could be imposed by State on such activity Sir Alladi
Krishnaswamy Ayyar stated that “State has been given very restrictive power and if it uses it
narrow mind and policies to restrict trade and commerce President can withhold such sanction
in the larger economic interest of the Country”. The purpose of including Part XIII in the
Constitution as emerges from the Constituent Assembly Debates was to ensure the interest of
the larger economy of the nation and to prevent unreasonable trade barriers in the free flow of
trade, commerce and intercourse, impeding economic growth. Framers of the Constitution
considered flow of trade, commerce and intercourse throughout the territory of India as
important for economic unity, but they did not deify trade, commerce and intercourse nor they
entertained any fetish for it. And it is clear from the above discussion that the Freedom was
from unreasonable trade barriers and not from taxation. In this case the citation of Constituent
Assembly Debates did affected the decision of the court and hence were outcome
determinative.

Abhiram Singh v C.D. COMMACHEN (DEAD) BY LRS88: In this case a short

reference was made to the debates of Constituent Assembly only to state that in recent years
the debates of constituent Assembly has helped in widening the scope of Constitutional
Provisions. In this case citation of debates had no effect on the decision of the Court.

87 Constituent Assembly Debates, 30/7/1949 and 18/09/1949, Pg…1126,

88 2017 SCALE (1) 1,

38
KRISHNA KUMAR SINGH v State of Bihar89: In this case reference was made to
the debates of Constituent Assembly to ascertain the scope of Ordinance making power.
Constitutional advisor envisaged the ordinance making power but was conscious of its use in
colonial era but stated that the President would act only upon aid and advice of Council of
Ministers and hence such power is not likely to be abused90. On report of Union Constitution
committee Prof… KT Shah observed that “such power must be used only in exceptional
circumstances and as it is against the principle of Rule of Law. Such are extraordinary power
and must be used is exceptional circumstances only. Even Dr. Ambedkar stated that the
Ordinance making power must be used in extraordinary circumstances only and must be used
only to fill the gap while Parliament is not in session. And hence such power was meant to deal
necessary evil and in no sense was parallel legislative power. In this case the reference to
debates was only for contextual understanding and did not affected the outcome of the decision.

Shayara Bano v Union of India91: The imperative question involved in this case was
whether Supreme Court can interfere into the domain of Triple Talaq on Judicial side. In this
case reference was made to Debates of Constituent Assembly to state that the Constitution is
Organic Document and is drafted for the progressive society. But the working of Constitution
depends on existing circumstances and conditions. The foundation upon which Constitution
will grow is Constitutional Morality. In this regard speech of Dr Ambedkar was cited where he
stated that “Constitutional morality is not a natural sentiment. It has to be cultivated. We must
realise that our people have yet to learn it. Democracy in India is only a top-dressing on an
Indian soil, which is essentially undemocratic”92. And Constitutional morality means to work
as per provisions of the Constitution and to obey rule of law and avoid acting in arbitrary
manner. Reference was made to speech of Mr. Mohammad Ismail Khan on the Article 35 which
currently is Article 44 in the Constitution where he stated that “no citizen should be forced to
give up its personal laws”. Further Mr. Naziruddin stated in the Assembly that “the personal
law of any community must not be changed without prior approval of such community. The
Goal should be toward Uniform Law but it must have consent of the people and must be
pursued gradually”. And several more amendments were suggested by several members of the
House but Dr. Ambedkar stated that “The amendments suggested by the members cannot be
accepted as there is law which regulate every aspect of Human Relationship in India. We have

89 2017 SCALE (1) 178,

90 B. Shiva Rao, Framing of India’s Constitution, Universal Law Publishing, New Delhi, 2006, Volume 2, Pg… 485
91 2017 SCALE (9) 178,
92 Constituent Assembly Debates, Volume-7, Pg… 38,

39
uniform laws in Criminal Area, Contracts, Transfer of Property etc… and hence the little
corner which is left untouched in marriage and succession. What this article aspire is
uniformity in such laws and hence I don not see any problem in pursuing those goals”. And
the debates of Constituent Assembly make it quite clear that the intention of Framers was to
accord highest regard to personal laws but with the rider that Parliament was competent to
amend the same, further it was stated in the Constituent Assembly that “religion must be
confined to religious places only and rest other spaces must be regulated uniformly so that we
grow up as a consolidated state”. 93 Also, it is clear that Constitutional Framers were aware of
the distinction between personal and civil laws and though the status of Fundamental Right
was given to personal laws, State has the power to bring about social reforms which are
progressive. It can be seen that the uniform law was not opposed by any member principally
the only objection was consensus building before drafting a Uniform Civil Code. There is also
no doubt as to whether state can improvise personal laws for carrying social reforms as it was
clear from the debates of Constituent Assembly. In this case the citation of debate was only to
develop contextual understanding and the distinction between the Personal and Civil Laws.
The decision of court was not based on aid of Debates rather on the Interpretation of Muslim
Personal.

JUSTICE K S PUTTASWAMY v Union of India94: To live is to live with dignity.

The draftsmen of the Constitution defined their vision of the society in which constitutional
values would be attained by emphasising, among other freedoms, liberty and dignity. So
fundamental was dignity that it permeates the core of the rights guaranteed to the individual by
Part III. Dignity was the core which unites the fundamental rights because the fundamental
rights seek to achieve for each individual the dignity of existence. Privacy with its attendant
values assures dignity to the individual and it was only when life can be enjoyed with dignity
can liberty be of true substance. Privacy ensures the fulfilment of dignity and was a core value
which the protection of life and liberty was intended to achieve95. In this case Supreme Court
rejected the Debates of Constituent Assembly on Privacy and stated that in particular case there
is problem while adopting the originalist approach. Government vehemently argued that the
Constitutional Framers expressly rejected “Right to Privacy” and it is not within realm of Court
to declare that there is general Fundamental Right to Privacy. Court cited various debates which

93 Constituent Assembly Debates, Volume 7, Pg… 356- 358,

94 2017 SCALE (10) 1,
95
Pg…18, Para 28, Justice K.S. Puttaswamy v Union of India,

40
took place between KM Munshi, Dr. Ambedkar and Sir Alladi Krishnaswamy where right to
secrecy was proposed to be granted but was rejected by the drafting committee. Court
highlighted the dissent note of Sir Alladi Krishnaswamy on “Secrecy of Correspondence”,
where he stated that “The effect of this clause would be, every private communication will
become State Paper”. The whole debate of Constituent Assembly indicate that such was to save
criminal investigation from being hit by Constitutional provisions and it can not be concluded
that Framers rejected whole notion of Right to Privacy. But one thing which can be concluded
is that, Constituent Assembly debates do not espouse any help on question of Right to Privacy
as the discussion on privacy was limited and narrow”. Hence in this case, Supreme Court
clearly indicated there is problem in going with the Originalist Interpretation. Court stated that
the Constitution was though framed by the Visionary People they could have drafted what was
known to them at that time only. In case of Due Process also the Constituent Assembly rejected
it specifically but with the working of Constitution it was realised that such must be included
in the Constitution. In this case though there is specific disapproval of Right to Privacy in the
debates of Constituent Assembly, such right is need of the hour. The contemporary conditions
require protection of such right and hence court recognised right to privacy as a Fundamental
Right.

Conclusion
• After conducting the extensive research, it was found that it was only in 51 Cases that
the Constitutional Bench of Supreme Court referred to the debates of Constituent
Assembly from 1993 to 2018.
• Out of those 50 cases, it was only in 12 cases where reference to the debates of
Constituent Assembly influenced the outcome of the decision. The cases, decision of
which was influenced by the citation of Constituent Assembly Debates are:
1. R.C. Poudyal v. UNION OF INDIA, 1993
2. Supreme Court Advocates-on-Record Association v UNION OF INDIA, 1993
3. S.R. Bommai V. UNION OF INDIA, 1994
4. Balaji Raghavan v UNION OF INDIA, 1995
5. In Re President, 2002
6. T.M.A. PAI Foundation v. State of Karnataka, 2002
7. Godfrey Phillips(I)Ltd v. State of U.P, 2005
8. Rameshwar Prasad v Union of India, 2006
9. Kuldip Nayar v Union of India, 2006

41
 10. Supreme Court Advocates-on-Record Association and another v. UNION OF
INDIA, 2015
11. Nabam Rebia and Bamang Felix v. Deputy Speaker, 2016
12. JINDAL STAINLESS LTD v. State of Haryana, 2016

Hence it can be concluded that in majority of cases reference to debates of Constituent

Assembly did not affected the outcome of the case.

• In two these cases Supreme Court rejected the reference to debates of Constituent
Assembly specifically they are: -
1. Saurabh Chaudri v. UNION OF INDIA, 2003
2. Justice K S Puttaswamy v UNION OF INDIA, 2017
• Interestingly out of these 50 Cases, Supreme Court in 30 cases used the Debates of
Constituent Assembly to Develop the contextual understanding of the terms used in the
Constitution but relied on the precedents while writing Judgment of the Court. Hence,
even though they used it for developing the understanding they were not outcome
determinative.
• In all, there are 38 cases in which the reference to Constituent Assembly debates had
no effect on the outcome of the Case.

Case Name Year Strength Contextual Outcome

of Understanding Determinative
Bench
RAGHUNATHRAO GANPATRAO v. UNION 1993 5 Yes No
OF INDIA
COMMISSIONER OF WEALTH TAX v. DR. 1993 5 no no
KARAN SINGH
R.C. POUDYAL v. UNION OF INDIA 1993 5 Yes Yes
Supreme Court Advocates-on-Record 1993 9 Yes Yes
Association v UNION OF INDIA
S.R. Bommai V. UNION OF INDIA 1994 9 Yes Partially
Outcome
Determinative
ACTION COMMITTEE v UNION OF INDIA 1994 5 no No
T.N. SESHAN CHIEF ELECTION 1995 5 no No
COMMISSIONER OF INDIA v UNION OF
INDIA
BALAJI RAGHAVAN v UNION OF INDIA 1995 5 Yes Yes
NEW DELHI MUNICIPAL CORPORATION v 1996 9 Yes No
State of Punjab
L. Chandra Kumar v UNION OF INDIA 1997 7 no No

42
 IN THE SUPREME COURT OF INDIA (IN RE: 1998 9 no No
APPOINTMENT & TRANSFER OF JUDGES)
Ajit Singh v State of Punjab 1999 5 no No
State of Bihar v. Bal Mukund Sah 2000 5 Yes No
State of Maharashtra v. Milind 2000 5 no No
B.R. Kapoor v. Union of India 2001 5 no No
I.T.C. Ltd v. Agriculture Produce Market 2002 5 no No
Committee
Pradeep Kumar Biswas v. INDIAN 2002 7 Yes No
INSTITUTE OF CHEMICAL BIOLOGY
In Re President 2002 5 Yes Yes
T.M.A. PAI FOUNDATION v. STATE OF 2002 11 Yes Yes
KARNATAKA
ISLAMIC ACADEMY OF EDUCATION v. 2003 5 no No
STATE OF KARNATAKA
SAURABH CHAUDRI v. UNION OF INDIA 2003 5 no No
E.V.Chinnaiah v. State of Andhra Pradesh 2004 5 Yes No
Jamshed N.Guzdar v. State of Maharashtra 2005 5 no No
Godfrey Phillips(I)Ltd v. State of U. P 2005 5 Yes Yes
Zee Telefilms Ltd. V. Union of India 2005 5 Yes No
State of Gujarat v. Mirzapur Moti Kureshi 2005 7 no No
Kassab Jamat
Rameshwar Prasad v Union of India 2006 5 Yes Yes
Kuldip Nayar v Union of India 2006 5 Yes Yes
Raja Ram Pal v. THE HON'BLE SPEAKER, 2007 5 Yes No
LOK SABHA
I.R. Goelho (Dead) By LRs v State of Tamil 2007 9 no No
Nadu
Ashoka Kumar Thakur v UNION OF INDIA 2008 5 Yes No
STATE OF WEST BENGAL v. Committee for 2008 5 no No
Protection Democratic Rights
Bhim Singh v UNION OF INDIA 2010 5 no No
B.P. Singhal v. UNION OF INDIA 2010 5 Yes No
GVK INDS. LTD v THE INCOME TAX OFFICER 2011 5 Yes No
SPECIAL REFERENCE NO.1 OF 2012 2012 5 no No
Pramati Educational & Cultural Trust v. 2014 5 Yes No
UNION OF INDIA
Manoj Narula v UNION OF INDIA 2014 5 Yes No
Mohd. Arif @ Ashfaq v Registrar of 2014 5 Yes No
Supreme Court
U.P. Hindi Sahitya Sammelan v State of UP 2014 5 Yes No
Madras Bar Association v. UNION OF INDIA 2014 5 no No
Supreme Court Advocates-on-Record 2015 5 Yes Yes
Association and another v. UNION OF
INDIA
Union of India v Sriharan @ Murugan 2015 5 Yes No
MODERN DENTAL COLLEGE v STATE OF 2016 5 Yes No
MADHYA PRADESH

43
 Nabam Rebia and Bamang Felix v. Deputy 2016 5 Yes Yes
Speaker
JINDAL STAINLESS LTD v. State of Haryana 2016 9 Yes Yes
Abhiram Singh v C.D. COMMACHEN (DEAD) 2017 7 no No
BY LRS
KRISHNA KUMAR SINGH v State of Bihar 2017 7 Yes No
Shayara Bano v UNION OF INDIA 2017 5 Yes No
JUSTICE K S PUTTASWAMY v UNION OF 2017 9 no No
INDIA

Hence it can be validly stated that, the Hypothesis stands proved after quantitative
analysis of the results and it can be claimed on the basis of acquired data that, Indian
Supreme Court is not following the English Rule laid down in Pepper v Hart case,
rather it is following an innovative approach to interpret the provision of the
Constitution.

44